Japan’s Legal Response in the Gray Zone

By James Kraska

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Petty Officer 1st Class Jason Browning, from Air Station Barbers Point, Hawaii, and deployed with the U.S. Coast Guard Cutter Boutwell, is lowered from an HH-65 helicopter to a Japan Coast Guard patrol boat during a search and rescue (SAR) exercise with the Japan Coast Guard.Credit: Coast Guard photo by Petty Officer Jonathan R. Cilley

While ample attention has been paid to China’s employment of maritime militia and gray zone tactics in the South China Sea, a similar dynamic unfolding in the East China Sea has attracted less consideration, yet it is even more provocative and dangerous. China’s tactics test the credibility of Japan’s unique concept of self-defense and the U.S.-Japan alliance, underwritten by American strategic security guarantees.

China routinely employs maritime militia fishing vessels backed by coast guard and naval forces to encroach on Japan’s territorial sea surrounding the Senkaku Islands (which are administered by Japan, but claimed by China as the Diaoyu Islands). Each year an influx of Chinese fishing vessels swarms around the Senkaku Islands beginning on August 15, when China lifts its unilateral fishing ban. Already, the recent Defense of Japan annual white paper reports that 2020 will be a record year for Chinese incursions.

China’s campaign of harassment and aggression raises questions about how Japan responds under its unique “pacifist constitution.” At the same time, the pressure campaign implicates the U.S.-Japan security alliance, which forms the bedrock for international security and stability in the eastern hemisphere. In 2017, then-U.S. Secretary of Defense Jim Mattis declared that protection of the Senkaku Islands was within the scope of the bilateral defense agreement. On July 29, Lt. Gen. Kevin Schneider, the commander of U.S. Forces Japan, said the United States would help Japan monitor the incursions by Chinese militia, which he described as an “attempt to truly challenge Japan’s administration” of the Senkaku Islands.

This article succinctly explores the legal machinery for Japan’s response to gray zone threats around its remote islands, and how Japan is positioned to seamlessly move from peacetime law enforcement to national self-defense when confronted by China’s maritime militia in its remote territories. Japan’s system can be opaque to outsiders, and Japan’s application of the international law on the use of force is not widely appreciated. A better understanding of Japan’s approach enhances deterrence and interoperability with U.S. forces.

The Senkaku Gray Zone

The Senkaku Islands have been under Japanese sovereignty since 1895, when the features were acquired as terra nullius after a decade of field surveys that found the islets were uninhabited and had never been controlled by any state. China only made a claim to the islets in the 1970s after oil was discovered in the seabed nearby. China’s long-serving Prime Minister Zhou Enlai once remarked, “I didn’t care about the Senkaku Islands, but on the oil question, historians made it an issue.” Since then, China’s maritime militia has relentlessly attempted to disrupt Japan’s administration of the islands. In 1978, a swarm of some 200 Chinese fishing vessels approached the Senkaku Islands, and dozens of them entered the Japanese territorial sea. Many of these fishing vessels had machine guns mounted on their decks. The Ministry of Foreign Affairs of Japan reported that the armed fishing vessels were directed from naval bases in Fujian province and Shandong province.

The 1978 incident presaged numerous incursions in recent decades. In 2010 about 30 Chinese fishing vessels infringed on Japan’s territorial waters. That same year, a Chinese fishing vessel collided with a Japanese Coast Guard patrol boat, inciting a diplomatic row. Then China began to substitute Chinese government vessels with fishing vessels in order to maintain its presence in those waters while minimizing the risk of confrontation between Japanese and Chinese coast guard or naval forces. During the first nine months of 2013, the average number of Chinese government surveillance ships per month in Japanese territorial waters was 17.6 per month; during the first nine months of 2014 it was just 7.1 As the number of incursions by Chinese government vessels decreased, the number of maritime militia vessels climbed. During the same time period in 2014, Japan ordered 208 Chinese fishing vessels to depart its territorial seas – nearly two-and-a-half times the number of Chinese fishing vessels directed out of their territorial waters by Japanese authorities in the same time period in 2013.

In August 2016, some 230 Chinese fishing vessels swarmed the Senkaku Islands alongside Chinese Coast Guard (CCG) vessels. Eight fishing boats and CCG vessels repeatedly entered Japan’s territorial sea around the islands, while another 15 vessels repeatedly entered Japan’s contiguous zone. In response, the Japan Coast Guard (JCG) deployed to the Senkaku Islands while the Ministry of Foreign Affairs protested the violation of its sovereignty. The maritime militia operations pose a classic gray zone challenge for Japan, calling into question whether the “peace constitution” is positioned for deterrence in a new era of major power competition.

Remote Island Security

Japan has strengthened its legal and administrative response to better protect its territorial integrity. In 2013, Japan released a new National Security Strategy that envisioned a seamless response to maritime threats that fluidly pose “unexpected situations.” The next year, a cabinet decision was released that outlined a roadmap for legislation to address threats that do not amount to an armed attack, such as around the Senkaku Islands, where police forces are either unavailable or lack sufficient capability to counter the intrusion. In such a case, the government would supplement the JCG with the Japan Self Defense Force (JSDF) in a police action called a Maritime Security Operation or a Public Security Operation. In either case, there is a seamless transition from maritime law enforcement to a more robust national “police action” conducted by the armed forces.

This approach provides an efficient and appropriate response regardless of China’s intention in sending maritime militia vessels around the Senkaku Islands. The non-innocent passage by private fishing vessels and any unlawful landing on Japan’s islands by persons disguised as fishermen may constitute a mere crime. The appropriate response would be for the JCG and police elements to enforce Japan’s domestic criminal law. Illegal landing on the islands by private persons, such as ordinary fishermen, even if they are armed, constitutes the crime of illegal entry. But if the JCG and police units are either overwhelmed by the number of fishing vessels or the intruders are heavily armed, the government would deploy the Japan Self Defense Force under authority of a “police action.”

If the Japanese government finds that the intrusion is intentional on the part of China, and conducted as an infringement that is tantamount to a systematic and deliberate use of force, the JSDF would be authorized to exercise the right of self-defense. This approach is consistent with the 1974 UN General Assembly resolution on the definition of aggression. Article 3 of the resolution states that aggression includes “sending by or on behalf of a state of armed bands, groups, or irregulars which carry out acts of armed force against another state of such gravity as to amount to attack or military occupation by armed forces…” If China’s armed fishermen are assessed as maritime militia, they would be attributed to the actions of the state and considered as “armed groups” under Beijing’s control. This determination triggers Japan’s exercise of self-defense.

While Japan operates within the framework of a “pacifist constitution,” it has ample authority to respond to the full range of threats that arise in the gray zone. The 2013 National Security Strategy and the 2014 Cabinet Office decision set forth the policy for transition from maritime law enforcement in peacetime to national self-defense during armed conflict. This decision-making dynamic has a profound effect on security in East Asia because it governs Japan’s interactions with China’s maritime militia in remote island territories, and necessarily implicates the U.S.-Japan alliance. To enhance alliance cohesion and integration between the JMSDF and U.S. Navy, the Stockton Center for International Law at the U.S. Naval War College and the Operational Law Office of the JMSDF College of Command and Staff regularly work together to strengthen and synchronize legal and operational planning. The credibility of Japan’s approach is key to strengthening deterrence throughout the spectrum of conflict escalation at sea. At the same time, the alliance is bolstered by U.S. tactical forces and nuclear umbrella that underpins international peace and stability in the region.

James Kraska is chair and Charles H. Stockton Professor for International Law in the Stockton Center for International Law at the U.S. Naval War College. The author would like to thank Commander Koki Sato, faculty in the Operational Law Office of the College of Command and Staff, Japan Maritime Self Defense Force, for his contributions to this analysis.